Preliminary ruling requested to the EU Court of Justice in a case of a planned demerger of joint-stock companies for joint liability about environmental damage

With an interesting decision, the First Civil Chamber of the Italian Supreme Court ordered the reference for a preliminary ruling to the EU Court of Justice, regarding the interpretation of art. 3 of the Sixth Council Directive 82/891/EEC of 17 December 1982, in order to clarify whether this article - applicable, pursuant to art. 22, also to the demerger through the establishment of new companies in the part in which it establishes that "if an element of the passive assets is not attributed in the demerger project and the interpretation of the latter does not allow deciding on its distribution, each of the beneficiary companies is jointly and severally liable" and that "the Member States may provide that this joint and several liability is limited to the net assets attributed to each beneficiary company" - precludes an interpretation of domestic law, in particular, of art. 2506 bis, paragraph 3 of the Civil Code, which intends the joint liability of the referable beneficiary, as a "liability element" not assigned by the project, in addition to the liabilities of an already determined nature, also to those identifiable in the harmful consequences, produced after the demerger, of conduct (commissive or omissive) that took place before the demerger itself or of subsequent conduct that developed from it, having the nature of a permanent offence, generating environmental damage whose effects, at the time of the demerger, are not yet fully determinable.

Interim ordinance n. 32365 dated 03/11/2022